Preservation and Waiver of Personal Jurisdiction Defenses Under Rule 12(h)(1)

Introduction

In Muna al-Suyid v. Khalifa Hifter, 4th Cir. Nos. 24-1422 et seq. (June 5, 2025), the Fourth Circuit clarified the strict operation of Federal Rule of Civil Procedure 12(h)(1) regarding the waiver of personal jurisdiction defenses. The consolidated appeals arose from three related suits in the Eastern District of Virginia under the Torture Victim Protection Act against Khalifa Hifter, commander of the Libyan National Army. Hifter moved to dismiss the first two cases on subject-matter, service and merits grounds (Rules 12(b)(1), (5), (6)) but omitted any reference to lack of personal jurisdiction (Rule 12(b)(2)). Months later, he raised the personal jurisdiction defense in the third-filed case. After consolidation and cross-motions for summary judgment, the district court dismissed all claims for lack of personal jurisdiction. On appeal, the Fourth Circuit examined (1) whether Hifter waived his personal jurisdiction defense in the first two cases, (2) whether he properly preserved it in the third, and (3) whether the plaintiffs made a prima facie showing of personal jurisdiction.

Summary of the Judgment

The Fourth Circuit dismissed Hifter’s cross-appeals in Nos. 24-1425, 24-1427, and 24-1429 because he sought only affirmance of favorable rulings.
In Nos. 24-1422 and 24-1426, the court held that by omitting Rule 12(b)(2) in his pre-answer motions, Hifter waived any personal jurisdiction defense under Rule 12(h)(1). The judgments dismissing those cases for lack of personal jurisdiction were reversed and remanded for further proceedings.
In No. 24-1423, the court found that Hifter timely raised the personal jurisdiction defense via a proper Rule 12(b)(2) motion. It affirmed the district court’s determination that plaintiffs failed to make a prima facie showing of personal jurisdiction under Rule 4(k)(1), but vacated the dismissal “with prejudice” and directed that it be re-entered “without prejudice.”

Analysis

Precedents Cited

Ruhrgas AG v. Marathon Oil Co., 526 U.S. 574 (1999) — personal jurisdiction is a prerequisite to any merits decision.
Grayson v. Anderson, 816 F.3d 262 (4th Cir. 2016) — once personal jurisdiction is challenged, the plaintiff bears the burden of proof.
Combs v. Bakker, 886 F.2d 673 (4th Cir. 1989) — establishing the prima facie evidentiary standard at summary judgment.
Fed. R. Civ. P. 12(g)(2), (h)(1) — one pre-answer motion rule and waiver of omitted defenses.
Daimler AG v. Bauman, 571 U.S. 117 (2014) — general (all-purpose) jurisdiction is limited to domicile.
Ford Motor Co. v. Montana Eighth Judicial District Court, 592 U.S. 351 (2021) — distinction and requirements for specific (case-linked) jurisdiction.

Legal Reasoning

Rule 12(b) permits a pre-answer motion to dismiss on enumerated grounds, including lack of personal jurisdiction (12(b)(2)). Rule 12(g)(2) allows only one such motion per defendant before answering, and Rule 12(h)(1) automatically waives any omitted defense under 12(b)(2)–(5). Hifter’s first motions in Nos. 24-1422 and 24-1426 cited only Rules 12(b)(1), (5), and (6), omitting 12(b)(2). In reliance on Insurance Corp. of Ireland, 456 U.S. 694, the Fourth Circuit held that these omissions effected waiver, regardless of later attempts to consolidate or reassert the defense in another related suit.

By contrast, in the third case (No. 24-1423), Hifter’s pre-answer motion properly invoked Rule 12(b)(2) and articulated a classic due process argument (absence of sufficient contacts with Virginia). Accordingly, that defense was preserved. The plaintiffs then failed to make a prima facie case under Rule 4(k)(1)(A) (Virginia long‐arm statute as coterminous with due process). They offered evidence of property ownership, counsel retention, and litigation cooperation, none of which connected the alleged Libyan conduct to Virginia for specific jurisdiction, nor showed domicile for general jurisdiction.

Impact

This decision underscores the rigor of Rule 12’s waiver provisions in multi-case litigation. Defendants must raise personal jurisdiction defenses in their first Rule 12 motion or risk forfeiture—even if they later file a separate motion in a related case or obtain consolidation. Plaintiffs, for their part, cannot bootstrap post-suit contacts into the jurisdictional analysis. Courts and practitioners will need to scrutinize early-stage motions closely to preserve or contest personal jurisdiction.

Complex Concepts Simplified

Personal vs. Subject-Matter Jurisdiction: Personal jurisdiction is a court’s power over the parties; subject-matter jurisdiction is power over the type of dispute.
Waiver vs. Forfeiture: Waiver is an intentional relinquishment of a known right (Rule 12(h)(1) treats certain omissions as automatic waivers); forfeiture is the failure to timely assert a right, potentially excused by the court.
General vs. Specific Jurisdiction: General jurisdiction (all-purpose) exists only where a defendant is “essentially at home” (domicile); specific jurisdiction (case-linked) requires that the claim “arise out of or relate to” the defendant’s forum contacts.
Rule 4(k)(1) vs. 4(k)(2): (k)(1) looks to state-court jurisdiction; (k)(2) allows federal‐question suits to proceed if no state could assert jurisdiction, consistent with due process.

Conclusion

Muna al-Suyid v. Hifter crystallizes three critical points: (1) a personal jurisdiction defense under Rule 12(b)(2) must appear in the defendant’s first pre-answer motion, or it is waived under Rule 12(h)(1); (2) consolidation or later motions cannot revive that waived defense; and (3) plaintiffs must produce a prima facie evidentiary showing of personal jurisdiction at the summary judgment stage, distinguishing between general and specific bases. This ruling will guide practitioners in framing and defending early dispositive motions and in structuring multi-case litigation strategies in federal courts.